The Foreign Emoluments Clause and the Chief Executive

As regular readers of this blog know, I have written several posts on the Foreign Emoluments Clause over the past couple months. During that same time, I have been working on an extensive scholarly article on the clause, and I recently posted a draft on SSRN. (Download here: The Foreign Emoluments Clause and the Chief Executive.)

Since being posted, the article and my arguments have drawn some great attention, including in The New York Times, Wall Street Journal, Slate, FoxNews.com, The Christian Science Monitor, and The Boston Globe, among other places. As you might expect, it’s hard for newspaper quotes to accurately reflect my nuanced views on the issues, and I hope interested readers will give the full article a look. Here’s the abstract:

The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting “emoluments” from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read “emolument” as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that “emoluments,” as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in connection with the U.S. Officer’s performance of services (office-related payments), rather than to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. This Article examines the limited authorities available and proposes a three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.

I look forward to all thoughtful comments and criticisms, whether via email, via the reply box, or on Twitter (@AndyGrewal). I offer special thanks to the readers who engaged with my prior blog posts and helped sharpen my reasoning.